Rules & Regulations

Dear Mr. Thompson:

The Office of Compliance Notice of Proposed Rulemaking (“NPR”) regarding amendments to the Procedural Rules of the Office of Compliance was published in the Congressional Record on September 4, 2003 (H7944 and S11110). Pursuant to section 303(b) of the Congressional Accountability Act of 1995 (“CAA”), the following comments and observations have been prepared and submitted by the Capitol Police Office of Employment Counsel and the Office of the General Counsel for the United States Capitol Police Board.

Procedural Regulations vs. Substantive Regulations

Initially, it is noted that several of the suggested amendments to the procedural rules are essentially substantive regulations. See comments below to proposed regulations §§ 1.03(a), 1.05(a), 4.16, 8.01, and 9.05. A regulation is deemed “substantive” if it “grant[s] rights, impose[s] obligations, or produce[s] other significant effects on private interests.” Perales v. Sullivan, 948 F.2d 1348, 1354 (2nd Cir. 1991); citing Batterton v. Marshall, 648 P.2d 694, 701-02 (D.C. Cir. 1980). Section 303 does not allow the Office of Compliance to accomplish through procedural rules what it could not do through substantive rulemaking provisions. Several of the proposed rules of the NPR meet the definition of substantive regulations as they directly impact the ability of the employing offices to function in accordance with the statutes incorporated under the CAA. Thus, they impose substantive obligations on the employing offices and grant individual rights that did not exist resulting in a significant effect on the rights of employing offices

There is no authority provided in the CAA that permits the Office of Compliance to accomplish through procedural regulations what it should be requesting through substantive regulations required under section 304(a)(2) of the CAA. “An administrative agency’s power to promulgate legislative regulations is limited to the authority delegated by Congress.” Bowen v Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988). Section 304(a)(2) of the CAA requires that substantive regulations can only be adopted once those regulations have received Congressional review and- if appropriate, approval.